A Blockbuster Case Yields an Unexpected Result

By ADAM LIPTAK

Published: September 19, 2011

WASHINGTON — People who hate Citizens United, last year’s blockbuster campaign finance decision by the Supreme Court, tend to blame it for allowing secret money from corporations and unions to flood the political landscape. But the critique is wrong on at least one point — the bit about secrecy.

An often-overlooked part of the Citizens United decision actually upheld disclosure requirements, saying that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Lower courts have embraced the ruling, with at least nine of them relying on Citizens United to reject challenges to disclosure laws, often in cases involving political spending related to social issues. In particular, courts have rejected efforts by groups opposed tosame-sex marriage to keep their supporters and spending secret.

Put another way, you can make the argument that Citizens United has been good for gay rights. “Even Justice Scalia supports donor disclosure,” said Joe Solmonese, president of the Human Rights Campaign, a national gay rights group.

The Supreme Court has left open the possibility that secrecy may be warranted when there is hard proof of illegal harassment of supporters of controversial causes. But justices across the ideological spectrum have so far leaned toward the value of open debate.

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Justice Antonin Scalia wrote in another case last year.

None of this means that existing disclosure laws are necessarily adequate. But if they are not, the fault lies with Congress and state legislatures, not the Supreme Court. You can’t blame Citizens United for everything.

It is probably true that the more important issue is not which laws have been upheld, but rather which bills were never passed. But it is also true that the Supreme Court is likely to sustain aggressive disclosure laws if they are enacted. The part of Citizens United that everyone remembers was its main ruling, allowing unlimited campaign spending by corporations and unions. The court decided that part by a 5-to-4 vote, split along the classic ideological fault line. People forget the second aspect of the decision, this one favoring disclosure and decided by a lopsided vote. Only Justice Clarence Thomas dissented.

The two parts of Citizens United are not hard to harmonize. Citizens United takes the libertarian view that people may be trusted to evaluate the messages they hear and need not be sheltered from the responsibility of critical thinking. The theory is as applicable to the marketing of soda and cigarettes as it is to that of political candidates.

Citizens United itself concerned a slashing polemical documentary about Hillary Rodham Clinton paid for by a conservative advocacy corporation that wanted to distribute the film on a video-on-demand service during the Democratic presidential primaries in 2008, when Mrs. Clinton was seeking the party’s nomination.

The five-justice majority in Citizens United said that speech about politics is at the core of what the First Amendment protects, that more speech is better than less and that the government has no business deciding who can speak or how much.

It is a small step from that reasoning to saying, as eight justices did, that it helps to know who is advancing the ideas you are evaluating. You probably trust some sources of information more than others, for instance, and you may examine an argument more skeptically if it happens to align with the speaker’s self-interest.

Richard L. Hasen, an election law specialist at the University of California, Irvine, added that political science research had shown that disclosure could provide voters with useful information. “If all I tell you about a candidate is that he is backed by the N.R.A. or Planned Parenthood, that is all many voters need to know,” he said. “The disclosure serves a shortcut function.”

James Bopp Jr., a driving force behind the Citizens United case and a leading critic of campaign finance regulation, acknowledged that his side had been on something of a losing streak in disclosure cases, including in a pair of decisions last month from the United States Court of Appeals for the First Circuit, in Boston, that upheld laws fromMaine and Rhode Island requiring the disclosure of election-related spending.

“It is true,” Mr. Bopp said, “that some courts, particularly most recently the First Circuit, have treated Citizens United’s endorsement of disclosure as novel, which it isn’t, but also as carte blanche for any regulation.”

Mr. Bopp is right that the Supreme Court has long been comfortable with disclosure requirements. But Ciara Torres-Spelliscy, a law professor at Stetson University in Florida, said that lower courts had in the years before Citizens United grown skeptical of compulsory transparency, sometimes saying that it chilled First Amendment rights by imposing burdensome reporting requirements. “Before Citizens United, there was a very alarming trend in this area,” she said.

In a recent article in the Georgia State University Law Review, Professor Torres-Spelliscy described “the dramatic 180-degree turn that the law has taken” in the wake of Citizens United on the issue of disclosure.

These days, Professor Hasen said, “lower courts have been taking their cue from Citizens United that disclosure laws, even if they are intrusive, are constitutional.
”